On 8 December 2024, the new Product Liability Directive (new PLD) came into force, replacing the Product Liability Directive of 1985 (previous PLD). The new regime will apply to products placed on the market on or after 9 December 2026, 24 months after its entry into force. The revision aims to address digital developments, such as software and AI, and to remove obstacles for consumers seeking redress for harm caused by defective products. This article outlines the basic principles, key changes, and implications of the new Directive.
Basic principles
The new PLD applies to all companies placing products on the market
in the EU, including manufacturers and certain additional
defendants (detailed below). It provides a framework for
determining liability for damage caused by defective products. A
product is deemed defective if it fails to provide the level of
safety a person is entitled to expect, considering all
circumstances, or if it fails to comply with EU or national safety
laws—an addition under the new PLD.
Consistent with the previous PLD, the new PLD maintains strict liability: consumers need not prove negligence or fault to claim damages. They must only demonstrate: (1) a defect; (2) damage; and (3) a causal link between the two. However, liability does not apply if the defendant can show it is probable that (a) the defect did not exist when the product was placed on the market, or (b) the state of scientific and technical knowledge at that time could not have revealed the defect.
Main changes
Software included in the definition of
'products'
A significant update is the inclusion of software within the
definition of 'products.' This covers standalone software,
embedded software in devices, software updates, upgrades, and AI
systems. Devices connected to the Internet of Things (IoT), such as
those reliant on live GPS data, also fall under the new regime.
Manufacturers may now be liable for defective or absent software
updates or inadequate cybersecurity protections.
Additional defendants
Liability primarily rests with the manufacturer. For manufacturers
outside the EU, liability may shift to the importer or the
manufacturer's authorized representative. If neither is
available, fulfilment service providers may be liable. Where these
parties cannot be identified, distributors and online platforms may
face liability, subject to additional conditions.
Expanded forms of damage
Unlike the previous PLD, which covered only physical injury and
property damage, the new PLD recognizes psychological harm and
destruction or corruption of personal data as compensable damage.
However, claims for stolen data or data leaks are excluded. For
psychological harm, no accompanying physical injury is required,
provided the harm is medically recognized.
No damage thresholds
The new Directive eliminates minimum and maximum thresholds for
liability claims. This allows for both small individual claims and
mass claims involving numerous affected parties, for which The
Netherlands has proven to be an attractive venue.
Rebuttable presumptions
To strengthen claimants' procedural position, the new PLD
introduces rebuttable presumptions for defectiveness and
causality:
- A product is presumed defective if:
- It fails to meet mandatory safety standards intended to prevent the harm suffered;
- It malfunctions clearly during normal or foreseeable use; or
- The manufacturer fails to disclose relevant information as
required.
- Causality is presumed if the product is defective and the damage aligns with the defect's typical effects.
Where proving defectiveness or causation is excessively complex (e.g., due to technical or scientific intricacy), claimants need only show a likelihood of defectiveness and a causal link.
Transfer of claims
The new PLD explicitly permits claims to be transferred or assigned
to third parties. Consumer associations and non-governmental
organizations can also bring claims on behalf of injured
parties.
Extended limitation period
For personal injuries with delayed symptoms, the new PLD introduces
a 25-year limitation period. The standard three-year limitation
period (from awareness of the claim) and the ten-year longstop
period (from the product being placed on the market) otherwise
remain in place.
Disclosure obligations
At the request of a claimant, courts may order defendants to
disclose "necessary and proportionate" evidence (e.g.
documents) when claimants have presented a "plausible"
case. The goal of this is to address (perceived) information
asymmetries between consumers and manufacturers. Tools to achieve
this were already present under existing Dutch procedural law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
